Day and Secretary, Department of Family and Community Services

[2005] AATA 449

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/365

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALAN DAY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr P Staer, Member

Date19 May 2005

PlacePerth

Decision The Tribunal affirms the decision under review.

..............(sgd P Staer).............

Member

CATCHWORDS

Carer Payment – Profoundly Disabled Child – Section 197(c) of Social Security Act 1991 – unfair discrimination – level of care

REASONS FOR DECISION

19 May 2005 Dr P Staer, Member           

1.      The decision under review is a decision of the Social Security Appeals Tribunal which was heard on 3 September 2004, which affirmed a decision of a Centrelink officer made on 18 May 2004 to reject Mr Day’s claim for Carer Payment in respect of his child, Adam.

2.      At the hearing Mr Day attended with his partner Keryn Brockman and his son Adam.  The department was represented by Ms Rhonda Bradley.

3.      The Tribunal was able to observe the son Adam during the proceedings.  He is obviously profoundly mentally damaged and he is not able to take notice of  specific verbal commands.  He was hyper active in the hearing room, trying to exit doors and could not stay still in one place for more than a few seconds at a time.  He also was making almost continual vocal noises which had no recognizable speech content.  Adam and Keryn did say that he was worse than he would be under home circumstances because he doesn’t like being confined in strange places.

4.      At issue in this case is whether Adam is a “profoundly disabled child” within the meaning of the Social Security Act 1991 (“the Act”).  In order to establish whether Adam is a profoundly disabled child the issues to be determined are:

·whether Adam has either a severe multiple disability or a severe medical condition

·also whether Adam, because of that disability or condition needs personal care for 6 months or more

·or, if Adam’s condition is terminal and his life expectancy is less than 6 months

·also whether Adam’s disability or condition includes 3 or more of the following circumstances:

(i)Adam receives all food and fluids by nasogastric or percutaneous enterogastric tube;

(ii)Adam has a tracheostomy;

(iii)Adam must use a ventilator for at least 8 hours each day;

(iv)Adam:

(A)has faecal incontinence day and night; and

(B)is under 3 years of age, is expected to have faecal incontinence day and night at the age of 3;

(v)Adam:

(A)cannot stand without support; and

(B)if under 2 years of age, is expected to be unable to stand without support at age 2;

(vi)a medical practitioner has certified in writing that Adam has a terminal condition for which palliative care has replaced active treatment;

(vii)Adam:

(A)requires personal care on 2 or more occasions between 10 pm and 6 am each day; and

(B)if under 6 months of age, is expected to require care as described in sub-paragraph (A) at the age of 6 months.

5.      Alan and Keryn both gave oral evidence.  The Section 37, T documents were before the Tribunal and there were no further documents to be exhibits.

6.       They both realised that they were unlikely to get a decision in their favour at this Tribunal but came primarily wanting to make a statement in regard to the injustice that they see in the Social Security system in relation to severely disabled children.

7.      Adam was born on 2 April 1994 and at around six months Alan first began to notice that he was not progressing as other children of the same age.  An investigation and progress since that time has shown that Adam suffers from cerebral dysplasia, autism and epilepsy

8.      Alan and Keryn have had full time care of Adam for the last two years.  They both can’t engage in full time employment as one always has to be with Adam every waking moment.  Adam is always hyperactive, has no fear and they are concerned that he will get out and be run over by a vehicle or touch or do something that will harm himself or others.

9.       He attends a special school in Rockingham and is transported by bus where he is strapped into a seat.  They do acknowledge there has been a slight improvement in Adam since going to the school, but even the schooling is not so regular that it allows either Alan or Keryn to commit themselves to work.  Adam may have epileptic fits for which they will be called, or if it’s a pupil free day or something happens at the school they have to go and collect him.

10.     They have also found that with dietary changes they have been able to improve his hyperactivity slightly; particularly, he is not to have sugary foods or anything with artificial colouring or flavouring.  He will grab and eat anything which he can find within reach and that sometimes even eats things as obnoxious as dog faeces.

11.     Because of his hyperactivity and the restrictions on what he can eat he cannot go to children’s’ parties or other events and now he is getting bigger and stronger it is more difficult to control him if he is with other children.

12.     Adam was born on 2 April 1994 and at around six months Alan first began to notice that he was not progressing as other children of the same age.  An investigation and progress since that time has shown that Adam suffers from cerebral dysplasia, autism and epilepsy. 

Applying the Law

13.     There is no dispute that Adam meets the requirements of s 197(2)(a)(i) in that he has a severe multiple disabilities.

14.     He also meets s 197(2)(b)(i) – needs continuous personal  care for more than six months.

15.      Where Adam fails is that he does not meet s 197(2)(c), in that he has only 2 of the 7 criteria on that list.  He clearly meets the s 197(2)(iv)(A) – has faecal incontinence day and night, and he also meets s 197(2)(vii)(A) in that he requires personal care on two or more occasions between 10 pm and 6 am each day.

16.     Because he does not meet the requirements of the legislation, this Tribunal has to affirm the decision under review.

17.     The Tribunal, however, has great empathy for Alan and Keryn and for the great job that they are doing in putting so much loving care into Adam.

18.     It appears to the Tribunal that the legislation penalises those parents who have severely hyperactive mentally damaged children.  If Adam was not able to walk or stand without support, he would qualify as a profoundly disabled child but as his disabilities are mental and physical his carers are somewhat penalised.

19.     If he had a tracheostomy but was otherwise a quiet, well balanced child with similar mental disabilities he would also qualify under the legislation. And in this scenario he would be less demanding on his carers. 

20.     The Tribunal would lend its support to any application being made by carers in Alan and Keryn’s decision to have the legislation changed to be more sympathetic to those with children such as Adam.

21.     The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P Staer.

Signed: .....................(sgd N Wee)..........................
  Associate

Date/s of Hearing  4 May 2005
Date of Decision  19 May 2005
Counsel for the Applicant         Ms Keryn Brockman      
Advocate for the Respondent  Ms Rhonda Bradley
  Service Recovery Team Centrelink